Challenge to Kudla rezoning in Crestmoor will be argued March 7 in the Court of Appeals

Digital version of article that appeared in Denice Reich’s February 2017 Newsletter.

By Greg Kerwin

A courageous group of Crestmoor residents has been challenging in court Peter Kudla’s high-density rezoning of the Mt. Gilead church parcel at the southeast corner of Crestmoor Park.  A 3-judge panel of the state Court of Appeals will hear oral argument on March 7 on that challenge.  The Denver trial judge rejected the challenge, but the appellate panel will take its own fresh look at all the issues and is not required to defer to the trial judge’s decision.

Because Kudla is continuing to build, we asked the Colorado Supreme Court review the case immediately, but they declined.  Nevertheless, the Court of Appeals granted our request to expedite the oral argument and will likely issue a decision soon after the argument.  If the Court of Appeals invalidates the rezoning that allowed Kudla’s high-density development, we will ask to have construction immediately stopped.

This appeal challenges the fairness of Denver’s “quasi-judicial” process for approving rezonings, which allows lobbyists to communicate secretly with Council decisionmakers before the public hearing and control the process behind the scenes.  Under state law, Council members are supposed to function like judges, rather than politicians, in the rezoning process.  But Denver has not implemented procedures to ensure a fair, neutral process.  Kudla’s zoning applicant was Peter Bershof, a current Denver Planning Board member.  Denver argues there was no conflict of interest with Bershof serving as the zoning applicant who requested Planning Board approval—a necessary step before Council review.  Denver also sees no conflict with Council members accepting large contributions of cash and services from the lobbyists who advocate for a rezoning.  In this instance, for example, Maria Garcia-Berry, CEO of Kudla’s lobbying firm CRL, served as Councilmember Nevitt’s campaign treasurer.  Nevitt spoke passionately in favor of the rezoning at the lame-duck Council meeting, just after losing his bid to become the city auditor.

The appeal also seeks to enforce several important Denver Zoning Code requirements intended to protect residents from arbitrary zoning changes.  The City has admitted in the appeal that its official policy is not to consider traffic and parking problems that a rezoning may cause.  In addition, a rezoning must be consistent with the City’s adopted plans, and there must be justifying circumstances such as neighborhood blight.  Because the Crestmoor neighborhood is stable, Denver planners never even proposed a “small area plan” to guide redevelopment.  Denver now argues that “strategies” in city-wide plans, which call for promoting infill development and a diverse mix of housing types justify this rezoning. If that’s the case, Denver planning officials can use those same “strategies” to justify high-density development in any stable neighborhood.

Please thank your neighbors who have served as plaintiffs.  They have spent many hours fighting for the neighborhood on this issue.  Most recently, Kudla’s lawyer, David Foster, made a baseless argument to seek attorney’s fees from them, contending parts of the appeal are frivolous.

Also please plan to attend the March 7 court of appeals argument at the Ralph Carr Judicial Center: 2 E. 14th Ave. in Denver (at 14th and Broadway, opposite the main library).  It will begin at 9:00 am in the First Floor Court of Appeals courtroom and last about 30 minutes (it is possible another case could be argued before or after).  It is important not to make any audience noise while the court is in session. You can also watch the argument by live video feed online at the court of appeals website:

If you want to receive email updates on this case, please send an email to:  Help show the appellate judges you care about Peter Kudla’s scheme to “improve” the Crestmoor neighborhood.  Please also ask Councilwoman Susman to honor her promises to help residents deal with the onslaught of traffic and parking problems caused by the new development she has supported in east Denver including Lowry.